Citation Nr: 0935537
Decision Date: 09/21/09 Archive Date: 10/02/09
DOCKET NO. 03-21 713A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a disability rating in excess of 20 percent
for a cervical strain.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Esq., Attorney at Law
ATTORNEY FOR THE BOARD
Ann L. Kreske, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1995 to May 1997.
This matter initially came before the Board of Veterans'
Appeals (Board) from an April 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, which denied the Veteran's
claim for a disability rating in excess of 20 percent for
cervical strain.
In September 2006, the Board, inter alia, denied the
Veteran's claim for a disability rating in excess of 20
percent for a cervical strain.
The Veteran appealed the September 2006 Board decision to the
United States Court of Appeals for Veterans Claims (Court).
In a September 2008 Memorandum Decision, the Court set aside
and remanded the part of the Board's decision denying a
disability rating in excess of 20 percent for a cervical
strain. Specifically, the Court indicated the Board must
provide adequate reasons and bases for its determination (1)
that VA satisfied its duty to assist when the Veteran did not
receive an adequate VA examination, and (2) that the Veteran
was not entitled to a disability rating in excess of 20
percent for her cervical strain. The Court, therefore,
remanded the issue on appeal to the Board so that it may
provide adequate reasons and bases for its findings.
To comply with the Court's decision, the Board is remanding
this case to the Department of Veterans Affairs RO. VA will
notify the appellant if further action is required.
REMAND
Pursuant to the Court's decision, this case must be remanded
for a VA examination of the Veteran's cervical strain.
Specifically, in its Appellee's Brief, the Board conceded
that, in its September 2006 decision, it failed to provide
adequate reasons and bases regarding (1) the factors
enumerated in Deluca v. Brown, 8 Vet. App. 202 (1996), and
(2) whether the examinations provided sufficient information
regarding these factors, as enumerated in the Appellant's
Brief. The Appellant's Brief argued that the Board failed to
provide adequate reasons and bases for why the Veteran was
not entitled to a disability rating in excess of 20 percent
for her cervical spine when she had indicated during VA
examinations that she had functional impairment due to pain.
It also argued that the VA examinations provided to the
Veteran were insufficient because they failed to quantify the
Veteran's additional disability that resulted from functional
impairment due to pain.
In this vein, a review of the record reveals that a December
2000 VA examiner indicated that the Veteran's cervical spine
was restricted to about 50 percent of its normal range of
motion with the degrees of restriction. The December 2000 VA
examiner also stated that, with regard to Deluca, the Veteran
reported pain, fatigue, weakness, and lack of endurance, with
lack of endurance being the most significant symptom. See VA
examination report, by QTC, dated in December 2000. The most
recent VA examiner, in April 2003, in response to a request
to provide an opinion regarding additional disability during
flare-ups, only stated that he was unable to state whether
there was additional limitation of range of motion following
repetitive use or due to flare-ups because the Veteran did
not experience a flare-up at the time of the examination.
Subsequently, in its September 2006 decision, the Board
denied the Veteran's claim for a disability rating in excess
of 20 percent for her cervical strain because the December
2000 and April 2003 VA examiners failed to quantify the
Veteran's functional impairment.
Furthermore, the Veteran's last VA examination that addressed
this disability was in April 2003, over six years ago. See
38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.327(a) (2008); Snuffer
v. Gober, 10 Vet. App. 400, 403 (1997) ("[W]here the
appellant complained of increased hearing loss two years
after his last audiology examination, VA should have
scheduled the appellant for another examination"). See also
Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record
does not adequately reveal current state of claimant's
disability, fulfillment of statutory duty to assist requires
a contemporaneous medical examination, particularly if there
is no additional medical evidence that adequately addresses
the level of impairment of the disability since the previous
examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994)
(finding 23-month-old examination too remote to be
contemporaneous where appellant submitted evidence indicating
disability had since worsened).
As such, a new VA examination is necessary to determine
whether there is additional disability during flare-ups, by
way of adequate testing, and whether the Veteran is entitled
to a higher disability rating for her cervical strain.
Accordingly, the case is REMANDED for the following action:
1. Ask the veteran to identify all health
care providers that have treated, or
evaluated, her service-connected cervical
strain disability and its associated
symptomatology since 2005, and attempt to
obtain records from each health care
provider that she identifies who might
have available records, if not already in
the claims file. If records are
unavailable and future attempts to
retrieve the records would be futile,
notations to that effect should be
annotated in the claims folder.
2. Schedule the Veteran for a VA
orthopedic examination
to determine the current severity of her
cervical strain. The claims file,
including a complete copy of this remand,
must be made available for review of the
Veteran's pertinent medical history,
including, in particular, the records of
her recent treatment. The examination
report must state whether such review was
accomplished.
The examination should include any
diagnostic testing or evaluation deemed
necessary. In particular, the examiner
should discuss all applicable ranges of
motion for the cervical spine and all
other associated functional impairment,
including pain/painful motion, more or
less movement than normal, weakened
movement, premature/excess fatigability,
incoordination, swelling, deformity or
atrophy from disuse, etc. Further, the
examiner should specify any additional
range-of-motion loss due to any of these
factors, especially when the Veteran's
symptoms are most prevalent
(e.g., during "flare-ups"). See 38
C.F.R. §§ 4.40, 4.45 and 4.59; DeLuca v.
Brown, 8 Vet. App. 202, 204-7 (1995).
If there is no objective evidence of these
symptoms, the examiner should so state.
The Veteran is hereby advised that failure
to report for her scheduled VA
examination, without good cause, may have
adverse consequences to her claim for a
higher rating.
3. Readjudicate the claim for a
disability rating in excess of 20 percent
for a cervical strain in light of the
physical examination provided and any
additional medical evidence received since
the April 2005 supplemental statement of
the case (SSOC). If the claim is not
granted to the Veteran's satisfaction,
send her and her attorney another SSOC.
It must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
discussion of all pertinent regulations.
The Veteran and her representative should
be given an opportunity to respond to the
SSOC before returning the file to the
Board for further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A.
§§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. her remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).